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"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Tuesday, September 13, 2005

The Dread Justice Roberts

I have been quiet about John Roberts' nomination to Chief Justice, which would no doubt disappoint my old Constitutional Law professor, but really I have very little to say. Sure, I've been following the spirited debates over at DKos, where Armando has done some wonderful analysis (see, e.g., here, here, and here), as have numerous commentors. I have also noted Hesiod's concerns that Roberts is certain (not likely, but certain) to vote to overturn Roe v. Wade if given a chance - and I usually find Hesiod to be pretty level-headed, so I don't take his comments lightly.

But my sense is that, while Roberts is certainly very conservative (I think any conjecture about a "Souter conversion" are premature, at best), and will no doubt work tirelessly to advance the Republicrat/Democan corporatist agenda - in case I am being too subtle, that's a Very Bad Thingy - I still think he's probably less appalling than almost any other nominee this White House is likely to tap. I mean, let me make this completely clear: If given the choice between John Roberts and, say, Priscilla Owen or Janice Rogers Brown, I would choose Roberts as quickly and as surely as I would choose execution by lethal injection over execution by drawing and quartering.

One odd circumstance, though, might raise a question about how much Roberts knew about Iran-contra and when he knew it.

Roberts left the Reagan White House in May 1986 - six months before public disclosure of the Iran-contra scandal threw the Reagan presidency into turmoil.

Roberts's departure alone isn't unusual. Ambitious and talented lawyers circulate in and out of government service on a regular basis. What is unusual is that between January and June 1986 the entire counsel's office departed. All seven lawyers - including presidential counsel Fred Fielding - resigned and left the White House.

The departures mark an extraordinary exodus of legal experience even as the Iran-contra deception was in full operation.

Peter Wallison, who succeeded Mr. Fielding as White House counsel in April 1986, says the departures were routine turnover within the office, nothing more. "They would have to be very, very perspicacious ... to have sensed something that was such a tightly held secret," he says. "Nobody had the slightest inkling [the Iran-contra operation] was occurring, and if they had, it would have been stopped."

Richard Hauser, deputy White House counsel until early 1986, also says there was no connection between the departures and Iran-contra. "It may have just been because Fred [Fielding] and I were leaving that that became a natural time for others to make plans," he says.

The Roberts legal memos dealing with Iran-contra issues were the type of routine matters that came through the White House counsel's office every day, he says.

"The only thing remarkable about it," Mr. Hauser says, "is that there was a pyrotechnic aspect to it that was unknown at the time."

In January 1985 Roberts was asked to assess the legality of the president and the White House becoming involved in fundraising on behalf of a newly formed private group called the Nicaraguan Refugee Fund. A plan being pushed by Colonel North and others at the National Security Council called for the White House to give corporate leaders a briefing on the situation in Nicaragua and then the group's representatives would ask the CEOs to give money to the fund. The money would be used for humanitarian aid and to wage a publicity campaign in the US against the Sandinista regime.

Roberts objected. In a Jan. 11, 1985, memo, he wrote: "I recommend stopping any White House involvement in this effort." The White House generally does not lend its name to private fundraising, he wrote. "The corporate CEOs would doubtless view the solicitation from the 'private' organization as having official backing if they learn about it at a White House briefing," the memo said.

But that wasn't the last word. After a week of internal appeals, Roberts reversed his position. Supporters of the effort argued that White House fundraising policy would not be violated, because solicitations would occur after the briefing at a reception at the Hay-Adams Hotel, a block from the White House.

"I suppose we could permit the briefing to take place," Roberts wrote on Jan. 18, 1985. "But I think [this] 'Chinese wall' argument is a bit artificial."

The "Chinese wall" concession is important because it established the briefing-solicitation process that North later used to raise funds from private individuals to pay for contra weapons. Those soliciting the funds on North's behalf later pled guilty to violating US tax laws for claiming the donations were tax-free.

In early 1986, Roberts wrote a series of memos on private fundraising. The plan was as in 1985: provide a White House briefing for wealthy administration supporters, then take them to the Hay-Adams and ask for money.

"I see no legal bars to the contemplated briefing," Roberts wrote in January 1986.

Sure sounds to me like someone found a horse's head in his bed one fine morning, no?